Education Dep’t to Advise Schools on Anti-LGBT Bullying

In a letter to educators to be released today, Oct. 26, Assistant Secretary of Education for Civil Rights Russlynn Ali will provide guidance to the educators on, among other topics, their obligations under Title IX to protect LGBT students from sexual harassment and gender-based harassment resulting from sex stereotypes.

In a conference call with reporters on Monday, a spokesman for the Education Department said, “This is the first time that the Office for Civil Rights in the Department of Education has articulated and clarified responsibilities educators have to protect GLBT folks against the type of harassment covered under gender stereotyping and gender harassment.”

In the letter, Ali writes:

Title IX prohibits harassment of both male and female students regardless of the sex of the harasser—i.e., even if the harasser and target are members of the same sex. It also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping. Thus, it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity. Title IX also prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.

During the Monday conference call, Ali said the letter aims at informing educators about their obligations to “prevent, alleviate and remediate discrimination happening in our nation’s schools.” Ali focused in on LGBT students in the call, which consisted of questions from exclusively LGBT media outlets.

“A lot of bullying experienced by LGBT students is accompanied by or in the form of sexual harassment or gender-based harassment because students are perceived as not conforming to traditional gender roles,” she said. “We want to be sure that that kind of harassment and discrimination can very much be a violation of Title IX and federal civil rights laws.”

Assistant Deputy Secretary of Education for Safe and Drug-Free Schools Kevin Jennings called the move “a very important step” and “a very clear commitment by this Department to combating bullying and harassment in all its forms, including harassment of students based on sexual orientation and gender identity.”

Sexual orientation and gender identity are not, as a status, protected from discrimination under federal education law, although a bill in Congress — the Student Non-Discrimination Act, which was introduced by Rep. Jared Polis (D-Colo.) and is modeled after Title IX — would add both categories to federal law.

An Education Department spokesman noted, “Many times the type of harassment directed at GLBT individuals takes the form of gender-based stereotyping, and that is protected. It’s not harassment because they are GLBT that they is protected; it is the type of harassment that they are on the receiving end of that is protected.”

The SNDA and Safe Schools Improvement Act both have more than 100 co-sponsors in the House, but neither has received specific endorsement from the Obama administration, which has announced support for the goals of the bills generally.

In response to a question from Metro Weekly on Monday about whether the Education Department supports the bills, Ali said, “We certainly supportthe goals of both Polis’s bill and the bill on safe and healthy schools,” adding that the Department of Education would “use all of the policy tools within our disposal to try and prevent this type of harassment from occurring” during the process of reauthorizing the Elementary & Secondary Education Act next year.

“Today, though, is about using the tools at our disposal now.”

* * *

Read the whole letter – DOE102610.pdf – or read the Title IX portion below the jump.

• Over the course of a school year, a gay high school student was called names (including anti-gay slurs and sexual comments) both to his face and on social networking sites, physically assaulted, threatened, and ridiculed because he did not conform to stereotypical notions of how teenage boys are expected to act and appear (e.g., effeminate mannerisms, nontraditional choice of extracurricular activities, apparel, and personal grooming choices). As a result, the student dropped out of the drama club to avoid further harassment. Based on the student’s self-identification as gay and the homophobic nature of some of the harassment, the school did not recognize that the misconduct included discrimination covered by Title IX. The school responded to complaints from the student by reprimanding the perpetrators consistent with its anti- bullying policy. The reprimands of the identified perpetrators stopped the harassment by those individuals. It did not, however, stop others from undertaking similar harassment of the student.

As noted in the example, the school failed to recognize the pattern of misconduct as a form of sex discrimination under Title IX. Title IX prohibits harassment of both male and female students regardless of the sex of the harasser—i.e., even if the harasser and target are members of the same sex. It also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping. Thus, it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity. Title IX also prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.

Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also, as this example illustrates, be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment. In this example, the harassing conduct was based in part on the student’s failure to act as some of his peers believed a boy should act. The harassment created a hostile environment that limited the student’s ability to participate in the school’s education program (e.g., access to the drama club). Finally, even though the student did not identify the harassment as sex discrimination, the school should have recognized that the student had been subjected to gender-based harassment covered by Title IX.

In this example, the school had an obligation to take immediate and effective action to eliminate the hostile environment. By responding to individual incidents of misconduct on an ad hoc basis only, the school failed to confront and prevent a hostile environment from continuing. Had the school recognized the conduct as a form of sex discrimination, it could have employed the full range of sanctions (including progressive discipline) and remedies designed to eliminate the hostile environment. For example, this approach would have included a more comprehensive response to the situation that involved notice to the student’s teachers so that they could ensure the student was not subjected to any further harassment, more aggressive monitoring by staff of the places where harassment occurred, increased training on the scope of the school’s harassment and discrimination policies, notice to the target and harassers of available counseling services and resources, and educating the entire school community on civil rights and expectations of tolerance, specifically as they apply to gender stereotypes. The school also should have taken steps to clearly communicate the message that the school does not tolerate harassment and will be responsive to any information about such conduct.

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